IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 555 of 2011(T)
1. ASTHAF,AGED 29 YEARS,S/O.AZEEZ,
... Petitioner
Vs
1. THE STATE OF KERALA,REP.BY SECRETARY TO
... Respondent
2. THE INSPECTOR GENERAL,KANNUR DIVISION,
3. THE SUPERINTENDENT OF POLICE,
4. THE CIRCLE INSPECTOR OF POLICE,
For Petitioner :SRI.A.V.JAMES
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :21/01/2011
O R D E R
K.M. JOSEPH &
M.L.JOSEPH FRANCIS JJ.,
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W.P.(C) No. 555 of 2011
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Dated this the 21st day of January 2011
JUDGMENT
Joseph J.,
The petitioner has approached this Court seeking the
following prayer:
“Issue writ of certiorari or any other writ order
or direction thereby call for the records leading to
Crime No.308 of 2005, 321 of 2007, 341 of 2008,
187 of 2009 of Sulthan Bathery Police against the
petitioner under Section 22(a) of NDPS Act and
quash the Ext.P1 notice and temporary order of the
2nd respondent.”
2. Briefly put the facts of the case are as follows. The
petitioner is a young man aged 29 years and he is a coolie worker.
In the year 2005, the fourth respondent has charged a false case
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under Section 22(a) of the NDPS Act against the petitioner. The
petitioner was informed by the fourth respondent that it is only a
petty case and insisted the petitioner to admit the offence. The
petitioner admitted the offence before the Magistrate and he was
sentenced to pay fine. The petitioner made some arguments with
the fourth respondent and his subordinates. Due to that vengeance
three more cases were charged against the petitioner. Ext.P1 is the
order issued to the petitioner under Sec.15 of the Kerala Anti-Social
Activities (Prevention Act), 2007 (hereinafter referred to as ‘the
Act’), which is dated as 27.11.2010. By Ext.P1, the petitioner is
restrained from entering the Wynad District for one year.
3. We heard the learned counsel for the petitioner and the
learned Government Pleader.
4. The case of the petitioner, of course, in the Writ petition is
that no notice was served on him, he would not come under the
definition of ‘known rowdy’, there are no complaints by the public
or any other person against the petitioner to make him a ‘known
rowdy’.
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5. A counter affidavit is filed on behalf of the first
respondent, wherein reference is made to the cases under the NDPS
Act. It is stated that he is classified as a ‘known goonda’ and a drug
offender as defined in the Act. A report was submitted from the
Superintendent of Police to the Inspector General of Police. The
Inspector General of Police felt that there is no other legal
provisions to prevent the accused from his anti social activities. A
temporary order was issued on 3.10.2009 restricting his entry to
Wynad district and also notice to offer his explanation was given.
The show cause notice was served on the petitioner on 14.10.2009.
Since the petitioner did not offer any explanation within the
stipulated time, the Inspector General of Police issued Ext.P1 order
restricting his entry to Wynad districts for a period of one year.
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6. Section 15 of the KAAP Act, inter alia, restricting the
movements of persons is quoted below:
“15. Power to make orders restricting the
movements of certain persons:-
(1) The District Magistrate or a Police Officer of
and above the rank of Deputy Inspector General
having jurisdiction, if satisfied on information
received in respect of a known goonda or known
rowdy, after having given him an opportunity to be
heard by notice served on him or pasted at his ordinary
place of residence, if any in Kerala, that he is
indulding in or about to indulge in or likely to indulge
in anti-social activities and with a view to prevent him
from so acting at any place within the jurisdiction of
such Magistrate or officer,may make an order:-
(a) directing that, except insofar as he may be
permitted by the conditions made in the order, he shall
not visit any such area or place as may be specified in
the order, for a period not exceeding one year:
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(b) requiring him to report his movements
within the State, in such manner, at such times, and to
such authority or person as may be specified in the
order, for a period not exceeding one year:
Provided that a copy of the order along with the
grounds for issuing such order shall be communicated
to the Government through the Director General of
Police.
(2) Any person aggrieved by an order issued
under sub-section (1) may represent before the
Advisory Board within fifteen days of the date of
service of the order and the Board on receipt of such
representation, consider the same, and after enquiring
into the facts and circumstances in such manner as it
may deem fit, shall within thirty days of the date of
receipt of such representation, annual, amend or
confirm the order, either in part or in full.
(3) The Government or the authority which
issued the order under Sub-section (1) may, on its own
motion, annual or amend the order at any time either in
part or in full.
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(4) Any person violating an order under sub-
section (1) shall be liable to be punished with
imprisonment for a term which may extend to three
years.
(5) If an order issued under sub-section (1)
above has ceased to have effect for any reason, a new
order under the said sub-section may be issued against
the same person, if he continues to be a person falling
within the definition of known rowdy or known
goonda as given in Section 2(o) or Section 2(p) and if,
after such cessation, he has again involved, in an
offence of the nature described in Section 2(o) or
Section 2(p) atleast in one instance.
7. We must notice certain features. Sec.15 does not appear to
contemplate passing of any preliminary order. Sec.15 contemplates
passing of a final order restricting the entry upto a maximum period
of one year. More importantly, Sec.15 contemplates action by the
authority on it being satisfied on information received in respect of
known rowdy or a known goonda and after giving him an
opportunity for being heard by notice served on him or pasted at his
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ordinary place of his residence in Kerala, that he is indulging in or
about to indulge in or likely to indulge in anti-social activities and
the maximum period of restriction is limited to one year. A perusal
of Ext.R1(a), which purports to be the preliminary order and also
show cause notice would show that the authority has come to the
conclusion that he must be served with an order restricting him from
visiting Wynad district under Sec.15. It is stated that on the basis of
the report he is fully satisfied. This satisfaction, though it may be
stated that it is in the show cause also as it is combined
communication, is without giving an opportunity to the petitioner.
Thereafter what is done in Ext.P1 is that after referring to the show
cause notice Ext.R1(a), absence of any cause shown by the
petitioner, report of the officers the interim order is confirmed.
8. Ext.R1(a) purports to be a show cause notice, wherein we
find that the authority has also passed an interlocutory order and
arrived at the satisfaction without issuing notice to the petitioner
that he should not enter into Wynad district. We feel that there is
no meaningful compliance with the principles of natural justice in
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the facts of this case. We must further hold that Sec.15 does not
provide for passing of a preliminary order as was done by the
authority.
9. In the circumstances, we dispose of the writ petition as
follows:
(i) Ext.R1(a) read with Ext.P1 will be treated as a
notice under Sec.15.
(ii) The petitioner shall be present before the second
respondent on 27.1.2011 at 11 a.m. and he will be free to
make submissions and after considering the materials and
submissions, the second respondent may proceed to pass
order under Sec.15, in accordance with law.
K.M. JOSEPH,
(JUDGE)
M. L. JOSEPH FRANCIS,
(JUDGE)
dl/